Patrick’s legacy: a more diverse Supreme Judicial Court

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WHEN DEVAL Patrick first nominated Ralph Gants to the Supreme Judicial Court in 2008, the governor was criticized for choosing yet another white man. At the time, Patrick’s overall record of selecting minorities to fill judicial appointments was considered the worst among recent Massachusetts governors. “I’ve been at this two years,” he said then. “At the end of eight or 12 years, judge the record. All right?”

Diversity can be relative to time and place. Nearly eight years into his governorship, Patrick’s record on the state’s highest court is all good: Gants’s predecessor, Roderick Ireland, was the first black chief justice. Patrick also appointed the first openly gay justice, Barbara Lenk; the first Asian-American justice, Fernande R. V. Duffly; and now the first black female justice, Geraldine Hines.

So when Patrick nominated Gants to be the 37th chief justice of the court, the move wasn’t the least bit controversial. Indeed, Gants’s elevation to the top of the state judiciary has been cast in the same spirit: He’s the first Jewish chief justice.

Thanks to Patrick, the Bay State’s highest court is more diverse than ever before. For the first time, the SJC will have a majority of women. With Hines — who was among those questioning Patrick’s commitment to diversity early on — he also added a dollop of needed academic variety to the court. A graduate of the University of Wisconsin Law School, Hines is now one of three justices who have law degrees from an institution other than Harvard. (Imagine that!)

None of this is just a matter of symbolism; Patrick has worked at choosing well-qualified nominees from a variety of backgrounds. Since the state, like the country, is also more diverse than ever, the judges who weigh the quest for justice and relief should reflect that.

Saying that diversity matters can be controversial. After President Obama nominated Sonia Sotomayor to the US Supreme Court, she came under fire for having previously stated in a speech, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Conservatives blasted the remark as racist, arguing that it suggested bias rooted in gender and ethnicity.

OK, maybe a “wise Latina woman” won’t always reach a better conclusion than a white male — or even a different conclusion. But she does bring a different range of life experiences to judgments of law. That’s important, and not just on the federal level.

Life experience of all sorts can shape judicial outcomes and dramatically change society.

“The United States is more diverse than ever, but its state judges are not,” declares
a report done in 2010 by the Brennan Center for Justice at New York University School of Law. “While we recognize that citizens are entitled to a jury of their peers who will be drawn from a pool that reflects the surrounding community, Americans who enter the courtroom often face a predictable presence on the bench: a white male.”

Pointing to a pervasive lack of female judges at the time, the report also noted, “This pattern is most prevalent in states’ highest courts, where women have historically been almost completely absent.”

That’s not true in Massachusetts. Governor Michael Dukakis nominated Ruth Abrams as the first woman to the SJC in 1978. In 1999, Margaret Marshall — nominated by Republican Governor Paul Cellucci — became the first female chief justice. During her tenure, the court ruled that denying same-sex couples the right to marry was unconstitutional. Marshall, a native of South Africa, fought apartheid during her college years and saw parallels between that fight for equality and the one to legalize gay marriage.

Rulings like that show how much life experience of all sorts, apart from gender or ethnicity, can shape judicial outcomes and dramatically change society.

With an appointed system, notes Martin Healy, chief legal counsel for the Massachusetts Bar Association, “Society cannot change the bench on its own. It has to do it through its elected representatives.” The SJC’s diversity is “a model from the top,” added Healy, one that sends a signal throughout the judiciary.

Some people believe the time is past for noting “firsts.” But until the courts do reflect the people who come before them, each “first” is worth celebrating. When it comes to the SJC, Patrick has done his part.